Connectivity Acceptable Use Policy
The following shall apply to and govern your use of the Connectivity Service to transmit reply text messages to persons who call your telephone number but are unable to reach you. In general, clients may not engage in any practice that (i) is illegal, (ii) is non-compliant with accepted industry best practice guidelines, (iii) disrupts or damages any Connectivity computer systems or network or other parties’ computer systems and networks, or (iv) violates any person’s rights. This Policy may be amended from time to time.
Your use of the Connectivity service is subject to and must comply with all applicable federal and state telemarketing and privacy laws and regulations. Before using the Connectivity service clients must review and become familiar with the following laws and guidelines, however, this information is not intended to be (i) interpreted as, relied upon, or used as a substitute for the advice of legal counsel, or (ii) considered to be a complete and exhaustive list of all laws and regulations applicable to client’s use of the Connectivity service. In addition to the below laws, various other state and foreign laws may apply to client’s use of the Connectivity Service. Client is advised to obtain the advice of its own legal counsel before using the Connectivity Service
A. Telephone Consumer Protection Act (“TCPA”)
The Federal Communication Commission (“FCC”), which has primary regulatory authority for enforcing the TCPA, has established rules implementing the TCPA regarding consent requirements, calling time restrictions, Do Not Call restrictions and obligations, and other related areas (“TCPA Rules”).
The full text of the TCPA can be found here: http://www.fcc.gov/cgb/policy/TCPA-Rules.pdf
The FCC’s TCPA Rules can be found here: http://www.fcc.gov/cgb/policy/Telemarketing-Rules.pdf
The TCPA prohibits using an automatic dialing system to make any call to a consumer’s mobile phone or wireless device without the prior express consent of the called party. Text messages are considered calls under the TCPA. The Connectivity platform may be considered to be an automatic dialing system. As such, clients must have the consent of the calling party to transmit a reply text message to the caller’s mobile device. The level of consent is determined by the content of the text message. If the reply text message simply replies to the caller’s message, that is, acknowledging receipt of and explaining why the client is unable to answer the call, and providing information about how and when the client can be reached, with no other content, the fact that the calling party called the client should satisfy the TCPA’s prior express consent standard. Connectivity provides standard, pre-set responses for this purpose.
On the other, if a client develops its own reply content or modifies Connectivity’s pre-set responses and such content contains any commercial messaging, that is, information concerning or promoting the availability, quality or sale of any product or service, a higher level of consent will be required. For these messages, clients must first obtain the prior express written consent of the calling party, which will not be satisfied by such party merely calling the client. As such, unless a client has first obtained the prior express written consent of a caller, a reply text may not include any commercial messaging. Refer to the FCC Rules above for the requirements necessary to satisfy the prior express written consent standard. If a client’s reply text does include commercial message, it shall be solely responsible for such messaging and shall indemnify Connectivity to the fullest extent of the law in the event of any action brought against Connectivity due to client’s reply message.
B. Telemarketing Sales Rule (“TSR”)
The Telemarketing Sales Rule is a trade regulation developed by the Federal Trade Commission that regulates telemarketing calls.
The full text of the TSR can be found here: https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/telemarketing-sales-rule
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) is a federal law regulating the transmission of commercial email messages and Internet-to-phone SMS commercial messages to addresses that reference Internet domains.
The full text of this law can be found here: http://uscode.house.gov/download/pls/15C103.txt
D. CASL (Canada)
Canada’s CASL is a federal law regulating the sending of “commercial electronic messages” or “CEMs”. A CEM includes any email message, text/SMS message or other electronic message that is sent to an electronic address and that has as even one of its purposes to encourage participation in a commercial activity. CASL applies to any CEM sent to or from a computer system located in Canada. CASL requires prior consent to send a CEM and requires that all CEMs meet prescribed form and content requirements. CASL is generally regarded as one of the most stringent anti-spam regimes in the world. Its specific and prescriptive requirements should be carefully considered and must complied with when sending CEMs to or from computer systems in Canada.
The full text of this law and its accompanying regulations can be found here: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html
E. Mobile Marketing Association
To the extent applicable, client also agrees to implement and follow industry guidelines when using the Connectivity Service. Specifically, Customer is advised of the following industry guidelines:
The U.S. Consumer Best Practices Guidelines for Cross-Carrier Mobile Content Programs as established by the Mobile Marketing Association (and as may be amended from time to time by the Mobile Marketing Association). The Guidelines apply to any message of a marketing nature, as well as any message sent via a Short Code.
The full text of the Guidelines is available here: http://www.mmaglobal.com/bestpractices.pdf
F. Prohibited Content
In addition with complying with the above laws and industry guidelines, reply text messages may not contain content that:
- is offensive, obscene, defamatory, fraudulent, abusive or contains tortious material;
- is unsuitable for minors;
- promotes, incites or instructs on criminal matters;
- is false, misleading or deceptive, or likely to mislead or deceive;
- is infringing the Intellectual Property Rights of a third party; or
- is otherwise unlawful.
Violation of this Policy may result in termination or suspension of all services provided by Connectivity and may also result in civil, criminal, or administrative penalties against the client and those assisting the client.
Any failure to enforce this Policy does not amount to a waiver of Connectivity’s rights.
This Policy was last updated August 2015.